Decision Date: 11/28/95 Archive Date:
11/28/95
DOCKET NO. 93-28 573 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to an increased rating for lumbosacral strain,
currently evaluated as 10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
W.R. Spargo, Associate Counsel
INTRODUCTION
The appellant served on active duty in the United States
Navy from May 1945 to July 1946.
In June 1970, the appellant was granted service connection
for chronic lumbosacral strain. A 10 percent disability
rating was assigned.
This appeal arose from a July 1992 decision of the
Department of Veterans Affairs Regional Office (VARO) in
Boston, Massachusetts which denied an increased rating for
chronic lumbosacral strain.
REMAND
A personal hearing was held at VARO at April 1993 in which
the appellant testified. A Hearing Officer's Decision in
August 1993 denying an increased rating was followed by a
Supplemental Statement of the Case in September 1993. In a
letter dated December 21, 1993, VARO notified the appellant
that his appeal was being certified to the Board of
Veterans' Appeals (Board) and informed him of the 90 day
period in which additional evidence could be submitted
directly to the Board.
Approximately four months later, on April 22, 1994, the
Board received additional medical records submitted by the
appellant. By letters dated in April 1994, the appellant
and his accredited representative waived the procedural
right to have VARO review the additional evidence and issue
a Supplemental Statement of the Case. 38 C.F.R. §
20.1304(c).
The waiver notwithstanding, the Board is constrained to
refer the case to VARO in light of 38 U.S.C.A. § 20.1304(a),
(b) and (c). The regulations provide for the Board's review
of post-certification evidence where there is both (1)
waiver of VARO review of the additional evidence and (2)
submission of the additional evidence to the Board within 90
days of the mailing of notice to the appellant of the
certification of the appeal. Subsection (b) dictates that
the Board cannot accept additional evidence where it is
submitted after the 90 days has expired, unless "the
appellant demonstrates on motion that there was good cause
for the delay." Furthermore, such motions must be in
writing. The appellant has not submitted the required
motion, nor can any of his filings be interpreted as an
explanation for delay.
In light of the foregoing, the Board finds that additional
procedural development is necessary, and the case will be
REMANDED for the following action:
VARO should review the additional evidence submitted in
April 1994 and readjudicate the appellant's claim. All
evidence of record should be weighed, including the
appellant's contentions regarding pain or functional loss.
38 C.F.R. § 4.40 (1994).
If the claim remains denied, the case should be returned to
the Board after compliance with all requisite appellate
procedure, including the issuance of a Supplemental
Statement of the Case. The purpose of this REMAND is to
satisfy due process requirements. The Board intimates no
opinion as to the ultimate conclusion warranted. No action
is necessary on the appellant's part until he receives
further notice.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740,
___ (1994), permits a proceeding instituted before the Board
to be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
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